This case is before us on remand from
the Supreme Court, which vacated our prior decision, State v. Thomas,
204 Or App 109, 129 P3d 212 (2006), adh'd to as modified on recons, 205
Or App 399, 134 P3d 1038 (2006) (Thomas I), in light of State v.
Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons,
344 Or 195, 179 P3d 673 (2008), and State v. Fults, 343 Or 515, 173 P3d
822 (2007).� State v. Thomas, 345 Or 316, 195 P3d 64 (2008).� In Thomas
I, we vacated defendant's sentences and remanded for resentencing, because
the trial court had imposed dangerous offender sentence enhancements on the
basis of its own factfinding.� That factfinding constituted plain error, and we
exercised our discretion to correct it.� The issue before us on remand is
whether, in light of Ramirez and Fults, we properly exercised our
discretion under Ailes v. Portland Meadows, Inc., 312 Or 376,
381-82, 823 P2d 956 (1991).� We conclude that we properly exercised our
discretion in Thomas I, and, accordingly, we again remand for
resentencing.

Defendant was convicted of attempted
murder with a firearm, felon in possession of a firearm, and assault in the
first degree with a firearm after he shot a man multiple times in the head and
chest.� On both the attempted murder and assault convictions, the trial court
imposed 30-year indeterminate maximum dangerous offender sentences under ORS
161.725(1)(a).� In support of those sentences, the court found that
"defendant suffers from a severe personality disorder with a propensity
toward crimes that seriously endanger the life or safety of another," thus
warranting an extended period of incarceration.� The trial court also imposed
consecutive 90-month "required incarceration terms" on both of those
convictions.� On the felon-in-possession conviction, the court imposed a
presumptive sentence of 60 months' imprisonment, to be served consecutively to
the 90-month prison terms that it imposed on the other convictions.

For the reasons set out in State
v. Shelters, __ Or App __, __, __ P3d __ (Jan 7, 2009), we conclude that
the trial court erred in sentencing defendant as a dangerous offender in the
absence of a jury finding to that effect, and we exercise our discretion to
correct that error.�